Kargbo v. State of New Hampshire

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Abu B. Kargbo
v. 	Civil No. 15-cv-315-PB
Warden, New Hampshire
State Prison
REPORT AND RECOMMENDATION
After a jury trial in the Hillsborough County Superior
Court, Abu Kargbo was convicted on one count of aggravated
felonious sexual assault, in violation of N.H. Rev. Stat. Ann.
(“RSA”) § 632-A:1, I(b) (2007). 	He is currently serving a
sentence in the New Hampshire State Prison. 	Appearing pro se,
Kargbo petitions for a writ of habeas corpus. 	See 28 U.S.C.
§ 2254. 	Before this magistrate judge for a report and
recommendation is respondent’s motion for summary judgment (Doc.
No. 67). 	Petitioner has not filed a formal objection to
respondent’s motion for summary judgment, but he has filed
several other pleadings, including three motions seeking his
release (Doc. Nos. 76, 77, 84). 	For the reasons that follow,
respondent’s motion for summary judgment (Doc. No. 67) should be
granted, in part, and petitioner’s motions (Doc. Nos. 76, 77,
84) should be denied.
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Background
In its order affirming Kargbo’s conviction, the New
Hampshire Supreme Court (“NHSC”) described the evidence adduced
at trial. 	Evidence showed that on August 7, 2009, the victim
went to a restaurant and then to the Amber Room, a nightclub in
Nashua. 	Over the course of the evening, she drank three beers
and two mixed drinks. 	Subsequently, she remembered dancing at
the Amber Room at 12:30 a.m., but the next thing she remembered
was waking up in the hospital.
As for Kargbo’s connection with the victim, evidence showed
that at about 3:00 a.m., Officer Andrew Roy of the Nashua Police
Department (“NPD”) saw Kargbo carrying the victim through a
parking lot. 	When Officer Roy encountered Kargbo and the
victim, the victim’s pants were unbuttoned and only partially
zipped.
Officer Roy had the victim transported to Southern New
Hampshire Medical Center. 	When she arrived there, she was
nearly unconscious. 	Emergency room personnel found dirt and
plant matter in the victim’s genital area, and expert testimony
established that semen from her vaginal samples matched Kargbo’s
DNA.
On August 8, 2009, i.e., the morning after Officer Roy’s
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interaction with Kargbo and the victim, Kargbo was interviewed
by Detective Keith Inzenga of the NPD. 	At the start of the
interview, Det. Inzenga told Kargbo that he was “not under
arrest or anything like that,” Admin. App’x at 79 (Doc. No. 67),
and Kargbo confirmed that he had “voluntarily responded [to the
NPD] on [his] own free will,” id. 	According to the transcript
of the interview, as reported on an NPD Voluntary Statement
Form, the interview started at 7:05 a.m. and finished at 9:02
a.m.1 	On several occasions, Det. Inzenga left Kargbo by himself
in the interview room, and at one point, he told Kargbo that
after the interview was over, he would drive him to wherever he
was staying. 	During the interview, Kargbo told Det. Inzenga
that he had engaged in sexual intercourse with the victim.
On March 11, 2010, Justice Ryan of the Nashua District
Court signed a warrant for Kargbo’s arrest. 	Later that month,
Kargbo was arrested in Florida. 	See Sentencing Tr. (Oct. 22,
2012).
Based upon the evidence presented at trial, Kargbo was
found guilty of the variant of aggravated felonious sexual
1 In addition, petitioner has submitted to this court a copy
of a motion in limine from his trial in which he stated, as a
fact, that “[o]n the morning of August 8, 2009, Mr. Kargbo went
to the Nashua Police Department, where Detective Inzenga
interviewed him for two hours.” 	Addendum (Doc. No. 27) 7 of 16.
3
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assault that makes it unlawful to “engage[] in sexual
penetration with another person . . . [w]hen the victim is
physically helpless to resist.”
After he was convicted, Kargbo filed a notice of mandatory
appeal in which he listed four issues: (1) Did the trial court
err in permitting State’s witness Pamela Keefe, a SANE nurse, to
testify at trial?; (2) Did the trial court err in finding Mr.
Kargbo competent to stand trial?; (3) Did the trial court err in
finding Mr. Kargbo competent – post-trial – for sentencing?; and
(4) Did the trial court err in denying the defendant’s motion to
dismiss for insufficient evidence?
After Kargbo filed his notice of appeal, through counsel,
but before he filed his brief in the NHSC, he filed two pro se
motions in the trial court. 	Judge Nicolosi treated those
motions as a petition for a writ of habeas corpus, construed the
petition as asserting a claim of ineffective assistance of
counsel, and identified the following purported errors by trial
counsel: (1) failing to file a motion to suppress the statement
that Kargbo gave to Det. Inzenga; (2) failing to show Kargbo the
entire video recording of his interview with Det. Inzenga prior
to trial; (3) failing to cross-examine Det. Inzenga; (4) failing
to move for a directed verdict; (5) failing to object to the
4
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jury instructions; and (6) instructing Kargbo not to testify.2
In addition, according to Judge Nicolosi, during the hearing on
his motion, Kargbo
raised two additional arguments that, 1. the jury
selection resulted in unfit jurors being among the
twelve who rendered the verdict; and 2. the testimony
of the SANE nurse [i.e., Pamela Keefe] was improperly
admitted because she was unqualified.
Admin. App’x at 34 (Doc. No. 68). 	In an order dated November
27, 2013, Judge Nicolosi denied Kargbo’s motion in large part,
but deferred ruling on the sixth issue until after she had
conducted a hearing.
After Judge Nicolosi issued her November 27 order, Kargbo
filed a pro se motion to dismiss the case against him, raising
arguments about the admission of testimony from nurse Keefe,
racial bias, his competence to stand trial, sufficiency of the
evidence, and the racial composition of his jury. 	With regard
to the racial composition of his jury, Kargbo made no factual
allegations, but cited Batson v. Kentucky for the proposition
that “the Equal Protection Clause forbids the prosecutor to
challenge potential jurors solely on account of their race,” 476
U.S. 79, 89 (1986). 	In an order dated January 23, 2014, Judge
2Kargbo also claimed that the court instructed him not to
testify. 	Judge Nicolosi rejected that claim as contradicted by
the trial record.
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Nicolosi denied Kargbo relief on the issue she had previously
deferred ruling on and denied his new motion to dismiss,
explaining that the motion “raise[d] the same issues previously
addressed by the court and, to the extent it can be said that
any new issues are raised, they are without foundation in the
record.” 	Admin. App’x at 57 (Doc. No. 68). 	There is no
indication in the record before this court that Kargbo ever
appealed Judge Nicolosi’s orders of November 27, 2013, and
January 23, 2014.
Next, Kargbo filed his appellate brief with the NHSC, again
through counsel. 	In it, he raised a single issue: whether the
State had introduced sufficient evidence to support his
conviction. 	The NHSC affirmed Kargbo’s conviction in an order
dated December 9, 2014. 	See State v. Kargbo, No. 2012-0784
(N.H. Dec. 9, 2014).
Kargbo filed his petition for a writ of habeas corpus in
this court in August 2015. 	In it, he asserts 12 claims. 	In
January 2016, Kargbo was granted a stay of this proceeding so
that he could go back to the state courts to pursue any claims
in his petition that had not yet been adjudicated there.
About two weeks later, Kargbo filed two pleadings with the
NHSC each captioned “Petitioner[’s] Motion to Exhaust His State
Remedies” and a third pleading captioned “Petitioner[’s] Motion
6
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to Proceeding in this Honorable Court.” 	See Addendum at 1, 5,
10 (Doc. No. 26). 	In one of the motions to exhaust, petitioner
argued that the statement he gave to Det. Inzenga was admitted
at trial in violation of his rights under Miranda v. Arizona,
384 U.S. 436 (1966). 	In the second motion to exhaust,
petitioner raised a claim that he had received ineffective
assistance of counsel. 	And in his third motion, he appears to
have elaborated on his ineffective-assistance claim and also to
have claimed constitutional violations based upon the racial
composition of his jury. 	Specifically, he referred to both his
equal-protection rights under Batson and his Sixth Amendment
“right to be tried by an impartial jury drawn from sources
reflecting a fair cross section of the community,” Berghuis v.
Smith, 559 U.S. 314, 319 (2010) (citing Taylor v. Louisiana, 419
U.S. 522 (1975)). 	While petitioner’s three motions were pending
before the NHSC, he filed what appear to be three largely
similar motions in the superior court.3
3The superior court docket lists three pleadings with
captions identical to the captions of the three motions that
petitioner had previously filed in the NHSC, but while the
record before this court includes all three of the motions that
petitioner filed with the NHSC, it appears to include only one
of the three motions that he later filed in the superior court.
The motion to exhaust that petitioner filed in the superior
court is substantially similar to, but not identical to, one of
the two motions to exhaust that he had filed in the NHSC.
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In an order dated June 24, 2016, the NHSC construed
Kargbo’s three motions as a petition for original jurisdiction,
and denied it. 	Then, in an order dated September 8, 2016, Judge
Temple of the superior court denied all three of the motions
before him on grounds of res judicata, and further ruled that
even if not barred by res judicata, those motions had no basis
in law or fact. 	In January 2017, petitioner filed a notice of
appeal with the NHSC, and in an order dated March 8, 2017, the
NHSC declined it.
Standard
A federal court may grant habeas corpus relief “only on the
ground that [a petitioner] is in custody in violation of the
Constitution or laws or treaties of the United States.” 	28
U.S.C. § 2254(a). 	Procedurally, “[a]n application for a writ of
habeas corpus on behalf of a person in custody pursuant to the
judgment of a State court shall not be granted unless it appears
that . . . the applicant has exhausted the remedies available in
the courts of the State.” 	28 U.S.C. § 2254(b)(1)(A). 	However,
“[a]n application for a writ of habeas corpus may be denied on
the merits, notwithstanding the failure of the applicant to
exhaust the remedies available in the courts of the State.” 	28
U.S.C. § 2254(b)(2).
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Substantively, when a prisoner brings a claim in federal
court that “was adjudicated on the merits in State court
proceedings,” 28 U.S.C. § 2254(d),
[f]ederal habeas relief may not be granted . . .
unless it is shown that the earlier state court’s
decision “was contrary to” federal law then clearly
established in the holdings of this Court; or that it
“involved an unreasonable application of” such law;
or that it “was based on an unreasonable determination
of the facts” in light of the record before the state
court.
Harrington v. Richter, 562 U.S. 86, 100 (2011) (citations
omitted). 	Notwithstanding the deferential standard of review
that normally applies to petitions for habeas corpus relief, if
a claim “has not been adjudicated on the merits in state court,”
it is subject to de novo review. 	See Jaynes v. Mitchell, 824
F.3d 187, 192 (1st Cir.) (citation omitted), cert. denied, 137
S. Ct. 312 (2016).
Discussion
I. 	Respondent’s Motion for Summary Judgment (Doc. No. 67)
A. 	Claim 1
In Claim 1, petitioner asserts that the trial judge was
biased against him, in violation of his Sixth and Fourteenth
Amendment rights to due process and a fair trial. 	However,
petitioner does not identify: (1) any statement, action, or
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ruling by the trial judge that demonstrated bias; (2) any
contemporaneous objection to any such statement, action, or
ruling; or (3) any decision by a state court on any issue
related to purported bias on the part of the trial judge.
Accordingly, as to Claim 1, respondent’s motion for summary
judgment should be granted.
B. 	Claim 2
In Claim 2, petitioner asserts that a defective reasonable-
doubt instruction deprived him of his rights to due process and
a fair trial under the Sixth and Fourteenth Amendments. 	The
court does not agree.
At the conclusion of Kargbo’s trial, Judge Nicolosi gave
various jury instructions, including these on reasonable doubt:
Under our constitutions, all defendants in
criminal cases are presumed to be innocent unless
proven guilty beyond a reasonable doubt by the State.
. . . 	The Defendant enters this courtroom as an
innocent person, and you must consider him to be an
innocent person unless and until the State convinces
you beyond a reasonable doubt that he is guilty of
every element of the alleged offense. 	And also, in
this case, the State must prove that the alleged
victim did not consent.
If, after all of the evidence and arguments, you
have a reasonable doubt as to the Defendant having
committed any one or more of the elements of the
offense, and again, in this case, that the alleged
victim did not consent to having sexual intercourse,
then you must find him not guilty. 	A reasonable doubt
is just what the words would ordinarily imply. 	The
use of the word reasonable means simply that the doubt
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must be reasonable rather than unreasonable. 	It must
be a doubt based on reason. 	It is not a frivolous or
fanciful doubt, nor is it one that can easily be
explained away. 	Rather, it is such a doubt based upon
reason as remains after consideration of all of the
evidence that the State has offered against it.
The test you must use in this case is this. 	If
you have a reasonable doubt as to whether the State
has proven any one or more of the elements of the
crime charged, and in this case, that the alleged
victim did not consent to having sexual intercourse,
you must find the Defendant not guilty.
Trial Tr. vol. III, 395:20–396:21.
The trial record discloses no contemporaneous objection to
any of the jury instructions, including those related to
reasonable doubt. 	Kargbo did not mention the jury instructions
in his notice of appeal to the NHSC; nor did he brief any issue
related to them. 	In the affidavit he submitted in support of
his state habeas petition, Kargbo stated: “Defendant believes
that the State of New Hampshire used jur[y] instructions against
defendant.” 	Admin. App’x (Doc. No. 68) 23. 	Judge Nicolosi
treated that statement as an actual claim and addressed it this
way: “The defendant failed to set out a specific complaint in
his pleadings nor did he fill out the complaint during the
hearing.” 	Id. at 44. 	Thus, it is far from clear that
petitioner has properly exhausted a constitutional claim based
upon the jury instructions at his trial. 	But, even if the claim
has not been exhausted, the court is permitted to deny it on the
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merits, see 28 U.S.C. § 2254(b)(2), and the district judge
should do just that.
In the context of jury instructions, “the only question for
[a federal court reviewing a § 2254 petition] is whether the
ailing instruction by itself so infected the entire trial that
the resulting conviction violates due process.” 	Carpio v. Wall,
269 F. Supp. 3d 4, 7 (D.R.I. 2017) (citation, brackets, and
quotation marks omitted). 	The reasonable-doubt instruction that
Judge Nicolosi gave the jury did not “infect” Kargbo’s trial at
all, much less infect it to the point where he was denied due
process. 	Accordingly, as to Claim 2, respondent’s motion for
summary judgment should be granted.
C. 	Claim 3
In Claim 3, petitioner asserts that he was deprived of his
Sixth and Fourteenth Amendment rights to due process and a fair
trial because he was denied the opportunity to be present at all
critical stages of his trial. 	However, petitioner does not
identify: (1) any critical stage of his trial that he was denied
the opportunity to attend; (2) any contemporaneous objection to
any purported exclusion from his trial; or (3) any decision by a
state court on an issue related to his purported exclusion.
Accordingly, as to Claim 3, respondent’s motion for summary
judgment should be granted.
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D. 	Claim 4
In Claim 4, petitioner asserts that because he is African
American and was convicted by an all-white jury, he was deprived
of his Sixth and Fourteenth Amendment rights to due process,
equal protection, and a fair trial before a jury made up of a
representative cross-section of the community. 	The court does
not agree.
“The Sixth Amendment secures to criminal defendants the
right to be tried by an impartial jury drawn from sources
reflecting a fair cross section of the community.” 	Berghuis,
559 U.S. at 319.
[T]o establish a prima facie violation of the Sixth
Amendment’s fair-cross-section requirement [a criminal
defendant] must show: “(1) that the group alleged to
be excluded is a ‘distinctive’ group in the community;
(2) that the representation of this group in venires
from which juries are selected is not fair and
reasonable in relation to the number of such persons
in the community; and (3) that this
underrepresentation is due to systematic exclusion of
the group in the jury-selection process.”
Id. at 319 (quoting Duren v. Missouri, 439 U.S. 357, 364
(1979)). 	Petitioner bases his claim upon allegations that he is
African American and his jury was all white, but neither his
petition nor any of his subsequent filings say anything about
the racial makeup of the venire from which his jury was drawn
nor does he identify any means by which members of his racial
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group were systematically excluded from the venire.
Accordingly, as to Claim 4, respondent’s motion for summary
judgment should be granted.
E. 	Claim 5
In Claim 5, petitioner asserts that the State improperly
excluded members of his race from the jury, in violation of his
due-process, equal-protection, and fair-trial rights under the
Sixth and Fourteenth Amendments. 	The court does not agree.
“[T]he Equal Protection Clause forbids the prosecutor to
challenge potential jurors solely on account of their race.”
Batson, 476 U.S. at 89. 	As the Batson Court went on to explain:
[A] defendant may establish a prima facie case of
purposeful discrimination in selection of the petit
jury solely on evidence concerning the prosecutor’s
exercise of peremptory challenges at the defendant’s
trial. 	To establish such a case, the defendant first
must show that he is a member of a cognizable racial
group, and that the prosecutor has exercised
peremptory challenges to remove from the venire
members of the defendant’s race. 	Second, the
defendant is entitled to rely on the fact, as to which
there can be no dispute, that peremptory challenges
constitute a jury selection practice that permits
“those to discriminate who are of a mind to
discriminate.” 	Finally, the defendant must show that
these facts and any other relevant circumstances raise
an inference that the prosecutor used that practice to
exclude the veniremen from the petit jury on account
of their race. 	This combination of factors in the
empaneling of the petit jury . . . raises the
necessary inference of purposeful discrimination.
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476 U.S. at 96 (citations omitted). 	As for how a defendant
might establish an inference of purposeful discrimination, the
Court suggested that, among other things, a defendant could rely
upon “a ‘pattern’ of strikes against black jurors included in
the particular venire,” id. at 97, or “the prosecutor’s
questions and statements during voir dire examination and in
exercising his challenges,” id.
Turning from the applicable law to the facts of this case,
while it is not entirely clear from the transcript of jury
selection, it would appear that five individuals were struck
from the jury as a result of peremptory challenges by one side
or the other. 	See Jury Selection Tr. (Nov. 28, 2011) 54:12-15.
The jury selection transcript includes no information on the
races of the jurors who were struck, and Kargbo’s counsel raised
no objections to the State’s presumed use of peremptory
challenges. 	Thus, the prosecutor was never called upon to
explain the basis for his peremptory challenges. 	Finally, apart
from making several conclusory assertions that members of his
race were excluded from his jury, petitioner identifies no
factors that might support an inference that the State engaged
in purposeful discrimination against members of Kargbo’s race
when using its peremptory challenges. 	Accordingly, as to Claim
5, respondent’s motion for summary judgment should be granted.
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F. 	Claim 6
In Claim 6, petitioner asserts that his conviction violated
his Fourteenth Amendment right to due process because actions by
the trial court and the State denied him exculpatory evidence.4
Petitioner does not identify: (1) any exculpatory evidence that
he was purportedly denied; or (2) any decision by the trial
court that resulted in the denial of exculpatory evidence.
Accordingly, as to Claim 6, respondent’s motion for summary
judgment should be granted.
G. 	Claim 7
In Claim 7, petitioner asserts that “[t]rial prosecutors
failed to turn[] over []relevant pre-trial statements and
testimony by . . . prosecution witnesses,” Pet. at 6 (Doc. No.
3), an assertion that has been construed as a claim the State
4The actual substance of Claim 6 is not easy to discern from
the record. 	In the motion to exhaust filed in Superior Court,
petitioner listed, as one of his five prayers for relief:
Issue finding of fact and rulings of law on this
motion to order state to disclose all criminal back
ground check of Melvin Campbell, Kent Snyder,
Nicoholas Mecum, Sonia Mecum, the victim, and Sheleka
Wilson.
Addendum (Doc. No. 26) at 4. 	None of those people, other than
the victim, testified at Kargbo’s trial, and Kargbo does not
indicate how their criminal records, or the victim’s, would
qualify as exculpatory evidence.
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violated Kargbo’s Fourteenth Amendment right to due process by
failing to turn over prosecution witnesses’ pretrial statements
and testimony. 	This issue was not addressed in Kargbo’s direct
appeal, his collateral attack on his conviction, or any of the
three pleadings that petitioner filed in the superior court and
the NHSC in an attempt to exhaust his claims. 	Thus, it does not
appear that Claim 7 has been properly exhausted. 	But even so,
the court may deny an unexhausted claim on the merits, see 28
U.S.C. § 2254(b)(2), and the district judge should dispose of
Claim 7 that way.
As for the substantive law that applies to Claim 7:
“‘The suppression by the prosecution of evidence
favorable to an accused upon request violates due
process where the evidence is material either to guilt
or to punishment, irrespective of the good faith or
bad faith of the prosecution.” 	Wearry v. Cain, 136 S.
Ct. 1002, 1006 (2016) (quoting Brady v. Maryland, 373
U.S. 83, 87 (1963)). 	To succeed on a § 2254 claim
under Brady, a petitioner must show that the
undisclosed evidence “is sufficient to undermine
confidence in the verdict.” 	Wearry, 136 S. Ct. at
1006.
McGrath v. Warden, N.H. State Prison, No. 14-cv-353-JD, 2016 WL
3945159, at *6 (D.N.H. July 19, 2016). 	Here, petitioner has not
identified either the specific witnesses at issue or evidence
from their statements that he was denied to his detriment. 	So,
necessarily, he has not indicated how the purportedly suppressed
evidence was material to guilt or punishment nor has he
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indicated how that evidence might be favorable to him.
Accordingly, as to Claim 7, respondent’s motion for summary
judgment should be granted.
H. 	Claim 8
In Claim 8, petitioner asserts that he was denied his Sixth
and Fourteenth Amendment right to counsel when he was not
allowed to represent himself in his direct appeal. 	Respondent
argues that Claim 8 is waived, unexhausted, and meritless.
Claim 8 should be denied on the merits. 	This is the reason why:
The Sixth and Fourteenth Amendments of our
Constitution guarantee that a person brought to trial
in any state or federal court must be afforded the
right to the assistance of counsel before he can be
validly convicted and punished by imprisonment. 	In
Faretta v. California, 422 U.S. 806 (1975), we decided
that the defendant also “has a constitutional right to
proceed without counsel when he voluntarily and
intelligently elects to do so.” 	Although that
statement arguably embraces the entire judicial
proceeding, we also phrased the question as whether a
State may “constitutionally hale a person into its
criminal courts and there force a lawyer upon him,
even when he insists that he wants to conduct his own
defense.” 	Our conclusion in Faretta extended only to
a defendant’s “constitutional right to conduct his own
defense.” 	Accordingly, our specific holding was
confined to the right to defend oneself at trial. 	We
now address the different question whether the
reasoning in support of that holding also applies when
the defendant becomes an appellant and assumes the
burden of persuading a reviewing court that the
conviction should be reversed. 	We have concluded that
it does not.
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Martinez v. Court of Appeal, 528 U.S. 152, 154 (2000) (footnote
and citations omitted). 	Accordingly, because Kargbo had no
constitutional right to represent himself on appeal,
respondent’s motion for summary judgment should be granted as to
Claim 8.
I. 	Claim 9
In Claim 9, petitioner asserts that his conviction violated
his rights under the Fifth and Fourteenth Amendments because
inculpatory statements he made to the police while subject to a
custodial interrogation were admitted at trial, even though the
police did give him a Miranda warning, and he did not knowingly
or voluntarily waive his rights to remain silent and to have an
attorney present during that interrogation. 	The court does not
agree.
“Under the familiar rule of Miranda v. Arizona, a suspect
who is subject to ‘custodial interrogation’ must first be
informed of his Fifth Amendment privilege against self-
incrimination and his right to an attorney to safeguard that
privilege.” 	Rivera v. Thompson, 879 F.3d 7, 13 (1st Cir. 2018)
(citations omitted). 	However:
Miranda’s protections [only] apply once “a person
has been taken into custody or otherwise deprived of
his freedom in any significant way.” 	Beckwith v.
United States, 425 U.S. 341, 347 (1976). 	“In
determining whether an individual was in custody,” [a
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court must] assess “all of the circumstances
surrounding the interrogation,” with the “ultimate
inquiry” being “whether there was a formal arrest or
restraint on freedom of movement of the degree
associated with a formal arrest.” 	Stansbury v.
California, 511 U.S. 318, 322 (1994) (per curiam)
(internal quotation marks and alterations omitted).
Rivera, 879 F.3d at 14 (parallel citations omitted). 	In a
recent case that, like this one, involved an interview with a
suspect at a police station, the First Circuit explained:
Swan’s voluntary decision to meet at the stationhouse
strongly suggests that she was not “in custody” for
the purposes of Miranda. 	See McCown v. Callahan, 726
F.2d 1, 6 (1st Cir. 1984) (Breyer, J.) (finding
interaction with law enforcement non-custodial because
the “defendants had come to the station voluntarily,”
“were told that they were not under arrest,” and “left
the station undisturbed”).
United States v. Swan, 842 F.3d 28, 31 (1st Cir. 2016).
Here, it is clear that Det. Inzenga did not give Kargbo
Miranda warnings during the interview he conducted on August 8.
But, apart from repeatedly asserting that the interview lasted
eight hours when the record evidence is that it lasted only two,
petitioner makes no effort to establish that his interview was a
custodial interrogation that required Miranda warnings.
Furthermore, there is nothing in the transcript of the interview
or anywhere else in the record to suggest that the August 8
interview was a custodial interrogation for Miranda purposes.
To the contrary, at the start of the interview, Kargbo confirmed
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that he had “voluntarily responded [to the NPD] on [his] free
will,” Admin. App’x (Doc. No. 68) at 78; Det. Inzenga expressly
told Kargbo that he was “not under arrest or anything like
that,” id.; and during the interview, Det. Inzenga told Kargbo
that after the interview was over, he would drive him to a
friend’s house. 	Under those circumstances, Kargbo was not in
custody. 	See Swan, 842 F.3d at 31. 	Because Kargbo was not in
custody during his interview on August 8, Miranda warnings were
not necessary to render the statements he gave Det. Kargbo
admissible at his trial. 	See Rivera, 879 F.3d at 13 (explaining
that “[t]he remedy for a violation of Miranda’s ‘prophylactic
rules, in the ordinary case, is the exclusion of evidence
impermissibly gathered as a result of the violation’”) (quoting
Johnston, 871 F.3d at 58). 	Accordingly, as to Claim 9,
respondent’s motion for summary judgment should be granted.
J. 	Claim 10
In Claim 10, petitioner asserts that “his arrest [was]
illegal for want of probable cause, and an arrest warrant,” Pet.
(Doc. No. 3) at 7, an assertion that has been construed as a
claim that Kargbo was subjected to a warrantless arrest, not
based on probable cause, in violation of his Fourth and
Fourteenth amendment rights. 	However, petitioner provides no
details about the arrest upon which Claim 10 is based. 	In the
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discussion of Claim 10 in his second petition, Kargbo refers to
the exclusion of evidence obtained as a result of an unlawful
arrest, which suggests that Claim 10 arises from the events of
August 8, 2009, and the interview that he gave to Det. Inzenga,
which was not custodial. 	The only arrest documented in the
record is Kargbo’s arrest in Florida, in March 2010. 	That
arrest took place after Judge Ryan had issued a warrant for it,
and there is no indication in petitioner’s pleadings or anywhere
in the record that the 2010 arrest ever led to the collection of
any evidence. 	Accordingly, as to Claim 10, respondent’s motion
for summary judgment should be granted.
K. 	Claims 11 and 12
Kargbo raises twelve claims in his petition. 	In his motion
for summary judgment, respondent makes two arguments, but does
not brief the reasons for granting summary judgment on Claims 11
and 12. 	First, he asserts, in a heading, that “Claims 1 through
10 and Claim 12 are waived,” Resp’t’s Mem. of Law (Doc. No. 67-
1) at 12, and then he explains, in the text that follows, that
“[t]he petitioner did not raise claims 1 through 10 at trial, in
his notice of appeal, or in his direct appeal,” id. 	While the
heading mentions Claim 12,5 the text does not, and neither the
5In Claim 12, petitioner asserts that State’s closing
argument included improper statements of personal opinion, in
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heading nor the text says anything about Claim 11.6
Respondent’s second argument is headed: “Claims 1 through
10 and 12 are without merit.” 	Resp’t’s Mem. of Law (Doc. No.
67-1) at 13. 	However, like his first argument, respondent’s
second argument says nothing about Claims 11 or 12.
In the Order issued this date, the court has directed
petitioner to file a motion for summary judgment addressing
Claims 11 and 12 within thirty days, or to move the court to
extend or vacate that deadline, before that deadline expires.
When respondent briefs the reasons for judgment as a matter of
law as to Claims 11 and 12, the court will address those
arguments. 	But for the moment, as to Claims 11 and 12,
respondent’s motion for summary judgment should be denied.
II. 	Petitioner’s Motions (Doc. Nos. 76, 77, 84)
Kargbo has filed three motions seeking relief on claims in
his § 2254 petition (Doc. Nos. 76, 77, 84). 	Document No. 76
violation of his Fourteenth Amendment right to due process.
6In Claim 11, petitioner asserts that he was deprived of the
effective assistance of trial counsel, in violation of his
rights under the Sixth Amendment, because trial counsel: (1) did
not move to suppress, or object to the admission of, either his
statement to Det. Inzenga or the swabs and clothing taken from
the victim; (2) presented evidence that bolstered the State’s
case; (3) did not object to improper jury instructions; and (4)
did not investigate and present mitigating evidence at his
sentencing.
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seeks Kargbo’s release, but asserts no factual basis or legal
arguments upon which such relief could be premised, and should
therefore be denied.
The second motion (Doc. No. 77) inquires as to the status
of petitioner’s request for release, and, along with Document
No. 84, asserts that there is insufficient evidence to support
his conviction. 	The NHSC in Kargbo’s direct appeal concluded
that the evidence was sufficient to support the jury’s verdict.
See Kargbo, No. 2012-0784, slip op. at 4. 	That decision is not
contrary to pertinent Supreme Court law, see, e.g., Jackson v.
Virginia, 443 U.S. 307, 332 (1979) (due process/sufficiency of
evidence standard), and is reasonable in light of the evidence
in the record. 	Accordingly, petitioner’s claims regarding the
sufficiency of the evidence do not warrant the relief requested
in Document Nos. 77 and 84.
Kargbo further asserts in Document No. 77 that the judge
and prosecutors in his case were biased and discriminated
against him because of his race. 	Kargbo’s assertion of the
trial judge’s alleged bias is the subject of Claim 1, as to
which summary judgment should be entered for the respondent for
reasons stated in this Report and Recommendation, supra. 	Kargbo
points to no record evidence to support his assertions of racial
bias as to any participant in his prosecution. 	Accordingly, the
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relief requested in Document No. 77 should be denied.
In Document No. 84, petitioner requests a pardon and
provides a string of cases that involve claims of trial judge
bias, jury selection claims, claims of ineffective assistance of
counsel, and Miranda violation claims. 	This court does not have
jurisdiction to pardon petitioner, for reasons stated in
respondent’s objection (Doc. No. 85). 	Furthermore, the
arguments and legal citations in Document No. 84, to the extent
they relate to Claim 9 (alleging a Miranda violation), Claims 4
and 5 (alleging jury selection issues), and Claim 11 (alleging
ineffective assistance of counsel), are not grounded in
references to any pertinent record evidence. 	Accordingly, the
relief sought in Document No. 84 should be denied.
Conclusion
For the reasons detailed above, respondent’s motion for
summary judgment, Doc. No. 67, should be granted as to Claims 1-
10, but denied as to Claims 11 and 12. 	The three motions filed
by petitioner (Doc. Nos. 76, 77, 84) should be denied.
Any objection to this Report and Recommendation must be
filed within 14 days of receipt of this notice. 	See Fed. R.
Civ. P. 72(b)(2). 	The 14-day period may be extended upon
motion. 	Failure to file a specific written objection to the
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Report and Recommendation within the specified time waives the
right to appeal the district court’s order. 	See Santos-Santos
v. Torres-Centeno, 842 F.3d 163, 168 (1st Cir. 2016).
__________________________
Andrea K. Johnstone
United States Magistrate Judge
February 21, 2018
cc: 	Abu B. Kargbo, pro se
Elizabeth C. Woodcock, Esq.
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